Johnson v. Ferguson

• Citation: 44 S.W.2d 650,329 Mo. 363
• Decision Date: 21 December 1931
• Docket Number: 29767
• Parties: Joseph B. Johnson, Estella Johnson and Dorothy Graham v. Robert E. Ferguson, Laura B. Ferguson, Charles Thomas, Missouri Pacific Railroad Company, City of Sedalia and Pettis County, Appellants
• Court: United States State Supreme Court of Missouri

44 S.W.2d 650

329 Mo. 363

Joseph B. Johnson, Estella Johnson and Dorothy Graham v. Robert E. Ferguson, Laura B. Ferguson, Charles Thomas, Missouri Pacific Railroad Company, City of Sedalia and Pettis County, Appellants

No. 29767

Supreme Court of Missouri

December 21, 1931

Appeal from Pettis Circuit Court; Hon. H. J. Westhues Special Judge.

Reversed and remanded (with directions).

George K. Brasher, George F. Longan and Montgomery & Rucker for appellants.

(1) Where the owner of lands sells lots according to a plat or plan showing streets, alleys, and other public ways thereon the right which passes to the purchaser in the streets, etc shown on the plat, is not the mere right that he may use the streets, but that all persons may use them. The purchaser acquires a right or easement in all of the streets or alleys shown on the plat or map, and can insist that all these streets and alleys shall be kept open and devoted to public use. Hence, when such a plat has been made and lots have been sold with reference thereto, the owner of the land by whom the plat was made, cannot, without the consent of each and all of his purchasers or their grantees, vacate a part of the streets dedicated. Dillon on Municipal Corporations (5 Ed.) sec. 1084; Elliott on Roads and Streets (2 Ed.) sec. 120. (2) While a mere survey of land by the owner into lots, streets, etc., will not, without a sale, amount to a dedication, yet a sale of lots with reference to such plat or describing lots as bounded by streets, will amount to an immediate and irrevocable dedication of the streets, binding on both the vendor and the vendee, the grantors and their successors in title being estopped by such a deed. Heitz v. St. Louis, 110 Mo. 624; McGinnis v. City, 157 Mo. 191; Buschmann v. City, 121 Mo. 523; Caruthersville v. Huffman, 262 Mo. 367. (3) If the original plat be made and recorded by one not the owner, but later the owner conveys lots by the platted description, such conveyance is an adoption of the plat by the owner with the same effect as though the owner had made and filed the plat, and creates an estoppel by deed. Longworth v. Sedevic, 165 Mo. 221; 18 C. J. 60, sec. 45; Hall v. Breyfogle (Ind.), 70 N.E. 833; Schultz v. Stringer (Iowa), 160 N.W. 1063. (4) The Statute of Limitations does not run against the rights of the public in the streets and alleys of Dundee Place, nor against the rights of the defendants as members of the public, because Sec. 1314, R. S. 1919, provides that nothing contained in any statute of limitations shall extend to any lands given, granted, sequestered, or appropriated to any public use or to any land belonging to the State. The act was passed in 1865, and is applicable to a common law dedication of streets and alleys as well as to a grant of a fee to a city. Caruthersville v. Huffman, 262 Mo. 367; City v. Bright, 179 Mo. 441; Robinson v. Korns, 250 Mo. 663; Hatton v. St. Louis, 264 Mo. 634. (5) No court has ever held that a common law platting of an addition was void merely because the platted ground lay outside of the city. The case of Hayes v. Kansas City, 242 S.W. 411, does not so hold.

A. L. Shortridge and Paul Barnett for respondents.

(1) It is the contention of defendants that the Porter Real Estate Company, the purchaser at the foreclosure sale, and John V. Farwell Company, grantee of the Porter Real Estate Company, recognized the plat by referring to the exception from this land as Block 21 of Dundee Place, and that such recognition prevented the foreclosure of the deed of trust from vacating the plat, when, at the same time Block 21 was never any part of the plaintiff's land. In conveying Block 21 there was no conveyance of the streets surrounding same, and the grantors in said deeds did not recognize the streets in any way; but Block 21 was referred to simply for convenience of description, instead of describing the tract, constituting same, by metes and bounds. When the deed of trust was foreclosed and the land purchased, the grantee in the trustee's deed purchased the streets and alleys because same were covered by the deed of trust, and the evidence does not show that any of said streets and alleys were recognized thereafter, although the defendant Ferguson testified that there was an alley through Block 21, which is now owned by him, but his evidence on cross-examination showed that this alleged alley was nothing more than a driveway which ended at his lot gate, and that if said alleged alley was extended through said block it would pass through his barn. There was no evidence that this driveway was located on an alley designated on the plat. Defendants in their contention have evidently lost sight of the foreclosure of the deed of trust, and that there was no plat in existence after the deed of trust was foreclosed, and before defendants' position could be sustained the conveyance of Block 21 of Dundee Place by that description or the lots therein, must necessarily have the effect of re-platting the land in question, because the condition after the foreclosure of the deed of trust was the same as though no plat had ever been filed. Bituminous Paving Co. v. McManus, 11 Mo.App. 593; Paving Co. v. McManus, 244 Mo. 190; Stewart v. Perkins, 110 Mo. 660. The evidence on the part of plaintiffs showed that the land in question since 1910, which is the time plaintiffs acquired same, was assessed as "The East half of Lot Two (2) of the Northwest quarter of Section Five (5), Township 45, Range 21, except Block 21 of Dundee Place," and plaintiffs always paid tax on their land under that description, it never having been assessed as platted land, and consequently paid tax on the streets and alleys. Boatmen's Bank v. Semple Place Realty Co., 202 Mo.App. 57. The dedication of the streets and alleys, which had been made before the filing of the plat, was "wiped out" by the foreclosure of the deed of trust to the same extent as a conveyance of the land subsequent to the execution of the deed of trust would have been wiped out by a foreclosure. The deed of trust covered the entire land claimed by plaintiffs, and in question in this suit, including the streets and alleys, this applying to the streets which the plat located on the three sides of the Ferguson property, Block 21, and there has been no recognition of any street or alley since said foreclosure, and the evidence clearly showed that none of same had ever been used. (2) When there is a statutory dedication the Statute of Limitations never runs. Sections 11180 to 11188, Revised Statutes 1929, apply to the plats of land contiguous to a city as well as land within the city. They apply to the city or any addition thereto. However, if the plat is not adjacent to the city, then the Statute of Limitations runs. Hayes v. Kansas City, 242 S.W. 411. (3) The exceptions in the deeds in plaintiffs' chain of title do not recognize the dedication. Where a reference in a deed to a public plat is manifestly for the purpose of location only, it does not operate as a dedication of streets shown on the plat but not mentioned in the deed. On the question of intention to dedicate it may be shown by parol evidence that the land conveyed by reference to the map was used as a pasture. Matter of Beach Avenue, 70 Hun, 351, 24 N.Y.S. 37; Alexandria v. Thigpen, 120 La. 293; In re Wayne Avenue, 124 Pa. 135. Where it is manifest that the only purpose of reference is for the purpose of description there is no dedication. 18 C. J. 62. The defendants admit there is no statutory dedication in this case, and are depending on a common law dedication, but there is no evidence of acceptance of the property or any part thereof by the public. A common law dedication of land can only be made by convincing proof of the intention of the donor who gave the land for public use, and the proof of the acceptance of the property by the public. Baker v. Squires, 143 Mo. 92.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This action was begun in the Circuit Court of Pettis County on April 6, 1928. Plaintiffs' petition alleged that plaintiffs owned land in Pettis County, thus described:

"The northeast quarter of the northwest quarter of Section 5, in Township 45, Range 21, except a strip fifty feet wide off of the west side thereof, which belongs to Missouri Pacific Railroad Company and which is a part of said railroad right of way, and except a strip thirty feet wide off of the east side thereof, which is a part of the public highway, and except a rectangular tract described as follows: Beginning at a point in the west line of Minter Avenue or State Fair Boulevard, a public highway, 699 feet south and 30 feet west of the northeast corner of the northwest quarter of the northeast quarter of said Section 5, thence running south along the west line of said State Fair Boulevard 230 feet, thence running west 270.51 feet, thence running north 230 feet, thence running east 270.51 to the place of beginning."

Plaintiffs alleged that on November 28, 1892, the owners of the east half of Lot 2 of the northwest quarter, which is the correct description of the land described as the northeast quarter of the northwest quarter (hereinafter referred to as the "fractional 40 acres"), executed, acknowledged and recorded a plat, designated as Dundee Place (including other land), as an addition to the city of Sedalia; but that it was outside of the city and was never accepted by the city. They sought a decree that their land was not affected by the plat.

Defendants Ferguson filed a separate answer admitting the execution and recording of the plat and their ownership of Block 21 thereof, but stated that the northeast corner of their land was 765 feet south and 30 feet west of the northeast corner of the fractional 40 acres in...